Nouri v. PA State University ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-24-2006
Nouri v. PA State University
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4328
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"Nouri v. PA State University" (2006). 2006 Decisions. Paper 1390.
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BPS-165 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 05-4328
_______________
MOHAMAD NOURI,
Appellant
v.
PA STATE UNIVERSITY
_______________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 01-cv-00840)
District Judge: Honorable John E. Jones, III
_______________
Submitted Under 28 U.S.C. § 1915(e)(2)(B)
March 16, 2006
BEFORE: RENDELL, AMBRO and GREENBERG, Circuit Judges
(Filed: March 24, 2006)
_______________
OPINION
_______________
PER CURIAM
Appellant Mohamad Nouri appeals from the District Court’s order imposing costs
pursuant to Federal Rule of Civil Procedure 54(d)(1). We will dismiss the appeal
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
In 2001, Nouri filed a complaint in the District Court, alleging employment
discrimination. After a jury trial, the Court entered judgment in favor of the Defendant.
Nouri filed a motion for a new trial, which the District Court denied on the merits. Nouri
filed a motion to appeal out of time, which the District Court denied, finding that the
motion was not timely under either Rule 4(a)(5) or 4(a)(6) of the Federal Rules of
Appellate Procedure. Nouri appealed, and we affirmed. See Nouri v. PA State Univ.,
C.A. No. 04-3259, slip op. (3d Cir. Mar. 17, 2005). On August 24, 2005, the Clerk of the
District Court entered an order assessing costs pursuant to Rule 54(d) in the amount of
$3,115.66. This appeal followed.
We have jurisdiction under 28 U.S.C. § 1291. We will dismiss an appeal under
§ 1915(e)(2)(B)(i) when the appeal is completely lacking in legal or factual merit. See
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Federal Rule of Civil Procedure 54(d)(1)
provides that “[s]uch costs may be taxed by the clerk on one day’s notice. On motion
served within 5 days thereafter, the action of the clerk may be reviewed by the court.”
Fed. R. Civ. P. 54(d)(1). The Rule imposes a five-day time limit for filing objections to
the imposition of costs. When a party seeking to challenge costs on appeal has failed to
properly file objections with the District Court, the objection is considered waived. See
In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 459 (3d Cir. 2000) (citing 10 MOORE’S
FEDERAL PRACTICE § 54.100, 54-144 (3d ed. 1999)); see also, Bloomer v. United
Parcel Serv., Inc., 337 F.3d 1220, 1221 (10th Cir. 2003); Prince v. Poulos, 876 F.2d 30,
34 (5th Cir. 1989).
Nouri did not object to the imposition of costs in the District Court and, thus, has
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waived his objection and right to review on appeal.1 Accordingly, we will dismiss the
appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
1
Nouri also seeks review from “all relevant prior orders in this action.” Every other
order in this case was final and appealable well before entry of the award of costs. Thus,
this portion of the appeal, as already determined in C.A. No. 04-3259, is untimely. See
Fed. R. Civ. P. 4(a).
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